Exhibit 10.14
Page 1
[CONFORMED AS EXECUTED]
[Draft: (New York)
Exhibt 10.14
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of June 27, 2001 (as amended,
modified, restated and/or supplemented from time to time, this "Guaranty"), made
by each of the undersigned guarantors (each a "Guarantor" and, together with any
other entity that becomes a guarantor hereunder pursuant to Section 26 hereof,
the "Guarantors"). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, General Maritime Corporation (the Borrower"), the lenders
from time to time party thereto (the "Lenders"), and Christiania Bank og
Kreditkasse ASA, New York Branch, as Administrative Agent (in such capacity,
together with any successor Administrative Agent, the "Administrative Agent"),
have entered into a Credit Agreement, dated as of June 27, 2001 (as amended,
modified, restated and/or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to the Borrower as contemplated
therein (the Lenders, the Collateral Agent and the Administrative Agent are
herein called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
with one or more Lenders or any affiliate thereof (each such Lender or
affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors"
and, together with the Lender Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of the
Borrower;
WHEREAS, it is a condition to the making of Loans to the Borrower
under the Credit Agreement that each Guarantor shall have executed and delivered
this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans to the Borrower under the Credit Agreement and the entering into by the
Borrower and/or one or more of its Subsidiaries of Interest Rate Protection
Agreements or Other Hedging Agreements and, accordingly, desires to execute this
Guaranty in order to satisfy the conditions described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each
Page 2
Guarantor hereby makes the following representations and warranties to the
Secured Creditors and hereby covenants and agrees with each Secured Creditor as
follows:
1. Each Guarantor, jointly and severally, irrevocably, absolutely
and unconditionally guarantees: (i) to the Lender Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of, premium, if any, and interest on the Notes issued by,
and the Loans made to, the Borrower under the Credit Agreement and (y) all other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrower to the Lender Creditors under the Credit
Agreement and each other Credit Document to which the Borrower is a party
(including, without limitation, indemnities, Fees and interest thereon
(including any interest accruing after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding at the rate provided for in the
Credit Agreement, whether or not such interest is an allowed claim in any such
proceeding)), whether now existing or hereafter incurred under, arising out of
or in connection with the Credit Agreement and any such other Credit Document
and the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in all such Credit Documents (all such
principal, premium, interest, liabilities, indebtedness and obligations being
herein collectively called the "Credit Document Obligations"); and (ii) to each
Other Creditor the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness (including any
interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for in the respective
Interest Rate Protection Agreements or Other Hedging Agreements, whether or not
such interest is an allowed claim in any such proceeding) owing by the Borrower
and/or one or more of its Subsidiaries under any Interest Rate Protection
Agreement or Other Hedging Agreement, whether now in existence or hereafter
arising, and the due performance and compliance by the Borrower and such
Subsidiaries with all of the terms, conditions and agreements contained in each
Interest Rate Protection Agreement and Other Hedging Agreement to which it is a
party (all such obligations, liabilities and indebtedness being herein
collectively called the "Other Obligations" and, together with the Credit
Document Obligations, the "Guaranteed Obligations"). As used herein, the term
"Guaranteed Party" shall mean the Borrower and each Subsidiary thereof party to
any Interest Rate Protection Agreement or Other Hedging Agreement with an Other
Creditor. Each Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against such Guarantor without proceeding against any other
Guarantor, the Borrower, any other Guaranteed Party, against any security for
the Guaranteed Obligations, or under any other guaranty covering all or a
portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower or any
other Guaranteed Party upon the occurrence in respect of the Borrower or any
such other Guaranteed Party of any of the events specified in Section 10.05
Page 3
of the Credit Agreement, and unconditionally and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the Secured Creditors,
or order, on demand. This Guaranty shall constitute a guaranty of payment, and
not of collection.
3. The liability of each Guarantor hereunder is primary, absolute,
joint and several, and unconditional and is exclusive and independent of any
security for or other guaranty of the indebtedness of the Borrower or any other
Guaranteed Party whether executed by such Guarantor, any other Guarantor, any
other guarantor or by any other party, and the liability of each Guarantor
hereunder shall not be affected or impaired by any circumstance or occurrence
whatsoever, including, without limitation: (a) any direction as to application
of payment by the Borrower or any other Guaranteed Party or by any other party,
(b) any other continuing or other guaranty, undertaking or maximum liability of
a guarantor or of any other party as to the Guaranteed Obligations, (c) any
payment on or in reduction of any such other guaranty or undertaking, (d) any
dissolution, termination or increase, decrease or change in personnel by the
Borrower or any other Guaranteed Party, (e) to the extent permitted by
applicable law, any payment made to any Secured Creditor on the indebtedness
which any Secured Creditor repays the Borrower or any other Guaranteed Party
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Guarantor waives any
right to the deferral or modification of its obligations hereunder by reason of
any such proceeding, (f) any action or inaction by the Secured Creditors as
contemplated in Section 6 hereof or (g) any invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor.
4. The obligations of each Guarantor hereunder are independent of
the obligations of any other Guarantor, any other guarantor, the Borrower or any
other Guaranteed Party, and a separate action or actions may be brought and
prosecuted against each Guarantor whether or not action is brought against any
other Guarantor, any other guarantor, the Borrower or any other Guaranteed Party
and whether or not any other Guarantor, any other guarantor, the Borrower or any
other Guaranteed Party be joined in any such action or actions. Each Guarantor
waives, to the fullest extent permitted by law, the benefits of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrower or any other Guaranteed Party or other circumstance
which operates to toll any statute of limitations as to the Borrower or any
other Guaranteed Party shall operate to toll the statute of limitations as to
each Guarantor.
5. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or change,
increase or extend the time of payment of, renew or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest thereon
or the principal amount thereof), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty herein
Page 4
made shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset there
against;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Guaranteed Party, any other Credit Party, any Subsidiary
thereof or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors,
other guarantors, the Borrower, any other Guaranteed Party, or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether due
or not) of the Borrower or any other Guaranteed Party to creditors of the
Borrower or such other Guaranteed Party other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower or any other Guaranteed Party to the
Secured Creditors regardless of what liabilities of the Borrower or such other
Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement (in accordance
with their terms) any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents or any of such other instruments or
agreements;
(h) act or fail to act in any manner which may deprive such
Guarantor of its right to subrogation against the Borrower or any other
Guaranteed Party to recover full indemnity for any payments made pursuant to
this Guaranty; and/or
(i) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of such
Guarantor from its liabilities under this Guaranty.
6. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Secured Creditor in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
Page 5
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. The
rights and remedies herein expressly specified are cumulative and not exclusive
of any rights or remedies which any Secured Creditor would otherwise have
hereunder. No notice to or demand on any Guarantor in any case shall entitle
such Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Secured Creditor to
any other or further action in any circumstances without notice or demand. It is
not necessary for any Secured Creditor to inquire into the capacity or powers of
the Borrower or any other Guaranteed Party or the officers, directors, partners
or agents acting or purporting to act on its or their behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
7. Any indebtedness of the Borrower or any other Guaranteed Party
now or hereafter held by any Guarantor is hereby subordinated to the
indebtedness of the Borrower or such other Guaranteed Party to the Secured
Creditors, and such indebtedness of the Borrower or such other Guaranteed Party
to any Guarantor, if the Administrative Agent or the Collateral Agent, after the
occurrence and during the continuance of an Event of Default, so requests, shall
be collected, enforced and received by such Guarantor as trustee for the Secured
Creditors and be paid over to the Secured Creditors on account of the
indebtedness of the Borrower or the other Guaranteed Parties to the Secured
Creditors, but without affecting or impairing in any manner the liability of
such Guarantor under the other provisions of this Guaranty. Without limiting the
generality of the foregoing, each Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
8. (a) Each Guarantor waives any right (except as shall be required
by applicable law and cannot be waived) to require the Secured Creditors to: (i)
proceed against the Borrower, any other Guaranteed Party, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other party; (ii)
proceed against or exhaust any security held from the Borrower, any other
Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party; or (iii) pursue any other remedy in the Secured
Creditors' power whatsoever. Each Guarantor waives any defense based on or
arising out of any defense of the Borrower, any other Guaranteed Party, any
other Guarantor, any other guarantor of the Guaranteed Obligations or any other
party other than payment in full of the Guaranteed Obligations, including,
without limitation, any defense based on or arising out of the disability of the
Borrower, any other Guaranteed Party, any other Guarantor, any other guarantor
of the Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower or any other Guaranteed Party other
than payment in full of the Guaranteed Obligations. The Secured Creditors may,
at their election, foreclose on any security held by the Administrative Agent,
the Collateral Agent or the other Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
Page 6
reasonable, or exercise any other right or remedy the Secured Creditors may have
against the Borrower, any other Guaranteed Party or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full in cash. Each Guarantor waives any defense arising out of any such
election by the Secured Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy
of such Guarantor against the Borrower, any other Guaranteed Party or any other
party or any security.
(b) Each Guarantor waives all presentments, promptness, diligence,
demands for performance, protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or incurring
of new or additional indebtedness. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's and each other Guaranteed
Party's financial condition and assets, and of all other circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope
and extent of the risks which such Guarantor assumes and incurs hereunder, and
agrees that the Secured Creditors shall have no duty to advise any Guarantor of
information known to them regarding such circumstances or risks.
Each Guarantor warrants and agrees that each of the waivers set
forth above in this Section 9 is made with full knowledge of its significance
and consequences and that if any of such waivers are determined to be contrary
to any applicable law or public policy, such waivers shall be effective only to
the maximum extent permitted by law.
9. The Secured Creditors agree that this Guaranty may be enforced
only by the action of the Administrative Agent or the Collateral Agent, in each
case acting upon the instructions of the Required Lenders (or, after the date on
which all Credit Document Obligations have been paid in full, the holders of at
least a majority of the outstanding Other Obligations) and that no other Secured
Creditors shall have any right individually to seek to enforce or to enforce
this Guaranty, it being understood and agreed that such rights and remedies may
be exercised by the Administrative Agent or the Collateral Agent or, after all
the Credit Document Obligations have been paid in full, by the holders of at
least a majority of the outstanding Other Obligations, as the case may be, for
the benefit of the Secured Creditors upon the terms of this Guaranty. The
Secured Creditors further agree that this Guaranty may not be enforced against
any director, officer, employee, partner, member or stockholder of any Guarantor
(except to the extent such partner, member or stockholder is also a Guarantor
hereunder).
10. In order to induce the Lenders to make Loans to the Borrower
pursuant to the Credit Agreement, and in order to induce the Other Creditors to
execute, deliver and perform the Interest Rate Protection Agreements and Other
Hedging Agreements, each Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation, limited partnership or limited liability company, as the case may
be, in good standing under the
Page 7
laws of the jurisdiction of its incorporation or formation, (ii) has the
corporate or other applicable power and authority, as the case may be, to own
its property and assets and to transact the business in which it is currently
engaged and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
conduct of its business as currently conducted requires such qualification,
except for failures to be so qualified which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) Such Guarantor has the corporate or other applicable power and
authority to execute, deliver and perform the terms and provisions of this
Guaranty and each other Credit Document to which it is a party and has taken all
necessary corporate or other applicable action to authorize the execution,
delivery and performance by it of this Guaranty and each such other Credit
Document. Such Guarantor has duly executed and delivered this Guaranty and each
other Credit Document to which it is a party, and this Guaranty and each such
other Credit Document constitutes the legal, valid and binding obligation of
such Guarantor enforceable against such Guarantor in accordance with its terms,
except to the extent that the enforceability hereof or thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty or any other Credit Document to which it is a party, nor
compliance by it with the terms and provisions hereof and thereof, will (i)
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the material
properties or assets of such Guarantor or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement or credit
agreement, or any other material agreement, contract or instrument, to which
such Guarantor or any of its Subsidiaries is a party or by which it or any of
its material property or assets is bound or to which it may be subject or (iii)
violate any provision of the Certificate of Incorporation or By-Laws (or
equivalent organizational documents) of such Guarantor or any of its
Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made or, in the case of any filings or recordings of the Security
Documents (other than the Vessel Mortgages) executed on or before the Initial
Borrowing Date, will be made within 10 days of the Initial Borrowing Date), or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of this Guaranty by such Guarantor or any
other Credit Document to which such Guarantor is a party or (ii) the legality,
validity, binding effect or enforceability of this Guaranty
Page 8
or any other Credit Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to such
Guarantor's knowledge, threatened (i) with respect to this Guaranty or any other
Credit Document to which such Guarantor is a party or (ii) with respect to such
Guarantor or any of its Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
11. Each Guarantor covenants and agrees that on and after the
Effective Date and until the termination of the Total Commitment and all
Interest Rate Protection Agreements and Other Hedging Agreements and until such
time as no Note remains outstanding and all Guaranteed Obligations have been
paid in full, such Guarantor will comply, and will cause each of its
Subsidiaries to comply, with all of the applicable provisions, covenants and
agreements contained in Sections 8 and 9 of the Credit Agreement, and will take,
or will refrain from taking, as the case may be, all actions that are necessary
to be taken or not taken so that it is not in violation of any provision,
covenant or agreement contained in Section 8 or 9 of the Credit Agreement, and
so that no Default or Event of Default is caused by the actions of such
Guarantor or any of its Subsidiaries.
12. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of (i) each Secured Creditor in
connection with the enforcement of this Guaranty (including, without limitation,
the reasonable fees and disbursements of counsel employed by each Secured
Creditor) and (ii) the Administrative Agent in connection with any amendment,
waiver or consent relating hereto (including, without limitation, the reasonable
fees and disbursements of counsel employed by the Administrative Agent).
13. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
14. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and with the written consent of either (x)
the Required Lenders (or, to the extent required by Section 13.12 of the Credit
Agreement, with the written consent of each Lender) at all times prior to the
time on which all Credit Document Obligations have been paid in full or (y) the
holders of at least a majority of the outstanding Other Obligations at all times
after the time on which all Credit Document Obligations have been paid in full;
provided, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class (as defined below) of Secured Creditors (and not
all Secured Creditors in a like or similar manner) shall also require the
written consent of the Requisite Creditors (as defined below) of such Class of
Secured Creditors (it being understood that the addition or release of any
Guarantor hereunder shall not constitute a change, waiver, discharge or
termination affecting any Guarantor other than the Guarantor so added or
released). For the purpose of this Guaranty, the term "Class" shall mean each
class of Secured Creditors, I.E., whether (x) the Lender Creditors as holders of
the Credit Document Obligations or (y) the Other Creditors as the holders of the
Other Obligations. For the
Page 9
purpose of this Guaranty, the term "Requisite Creditors" of any Class shall mean
(x) with respect to the Credit Document Obligations, the Required Lenders (or,
to the extent required by Section 13.12 of the Credit Agreement, each Lender)
and (y) with respect to the Other Obligations, the holders of at least a
majority of all obligations outstanding from time to time under the Interest
Rate Protection Agreements and Other Hedging Agreements.
15. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents and Interest Rate Protection Agreements or Other
Hedging Agreements has been made available to a senior officer of such Guarantor
and such officer is familiar with the contents thereof.
16. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in the Credit
Agreement and any payment default under any Interest Rate Protection Agreement
or Other Hedging Agreement continuing after any applicable grace period), each
Secured Creditor is hereby authorized, at any time or from time to time, without
notice to any Guarantor or to any other Person, any such notice being expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by such Secured
Creditor to or for the credit or the account of such Guarantor, against and on
account of the obligations and liabilities of such Guarantor to such Secured
Creditor under this Guaranty, irrespective of whether or not such Secured
Creditor shall have made any demand hereunder and although said obligations,
liabilities, deposits or claims, or any of them, shall be contingent or
unmatured.
17. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including
telexed, telegraphic or telecopier communication) and mailed, telexed,
telecopied or delivered: if to any Guarantor, at c/o General Maritime
Corporation, as agent, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, with
copies to Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention Xxxxxx X. Xxxxxx, Esq., Telephone No.: (000) 000-0000,
Telecopier No.: (000) 000-0000; if to any Secured Creditor, at its address
specified opposite its name on Schedule II to the Credit Agreement; and if to
the Administrative Agent, at 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Hans Chr. Kjelsrud, Telephone No.: (000) 000-0000, Telecopier
No.: (000) 000-0000; or, as to any other Credit Party, at such other address as
shall be designated by such party in a written notice to the other parties
hereto and, as to each Secured Creditor, at such other address as shall be
designated by such Secured Creditor in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, (i) when
mailed, be effective three Business Days after being deposited in the mails,
prepaid and properly addressed for delivery, (ii) when sent by overnight
courier, be effective one Business Day after delivery to the overnight courier
prepaid and properly addressed for delivery on such next Business Day, or (iii)
when sent by telex or telecopier, be effective
Page 10
when sent by telex or telecopier, except that notices and communications to the
Administrative Agent or any Guarantor shall not be effective until received by
the Administrative Agent or such Guarantor, as the case may be.
18. If claim is ever made upon any Secured Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrower or any other Guaranteed Party)
then and in such event each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon such Guarantor,
notwithstanding any revocation hereof or other instrument evidencing any
liability of the Borrower or any other Guaranteed Party, and such Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
19. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN CERTAIN OF THE VESSEL MORTGAGES, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO ITS CONFLICT OF LAWS RULES (OTHER THAN TITLE 14 OF ARTICLE 5 OF THE
GENERAL OBLIGATIONS LAW). Any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which any Guarantor is a party may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York in each case which are located in
the City of New York, and, by execution and delivery of this Guaranty, each
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Guarantor hereby further irrevocably waives (to the fullest extent permitted by
applicable law) any claim that any such court lacks personal jurisdiction over
such Guarantor, and agrees not to plead or claim in any legal action or
proceeding with respect to this Guaranty or any other Credit Document to which
such Guarantor is a party brought in any of the aforesaid courts that any such
court lacks personal jurisdiction over such Guarantor. Each Guarantor further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such Guarantor at its address
set forth in Section 18 hereof, such service to become effective 30 days after
such mailing. Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) any objection to such service of process and
further irrevocably waives and agrees not to plead or claim in any action or
proceeding commenced hereunder or under any other Credit Document to which such
Guarantor is a party that such service of process was in any way invalid or
ineffective. Nothing herein shall affect the right of any of the Secured
Creditors to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
Page 11
(b) Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Guaranty or any other Credit Document to which
such Guarantor is a party brought in the courts referred to in clause (a) above
and hereby further irrevocably waives (to the fullest extent permitted by
applicable law) and agrees not to plead or claim in any such court that such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF
THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. In the event that all of the capital stock or other equity
interests of one or more Guarantors is sold or otherwise disposed of or
liquidated in compliance with the requirements of Section 9.02 of the Credit
Agreement (or such sale or other disposition has been approved in writing by the
Required Lenders (or all the Lenders if required by Section 13.12 of the Credit
Agreement)) and the proceeds of such sale, disposition or liquidation are
applied in accordance with the provisions of the Credit Agreement, to the extent
applicable, such Guarantor shall upon consummation of such sale or other
disposition (except to the extent that such sale or disposition is to the
Borrower or another Subsidiary thereof) be released from this Guaranty
automatically and without further action and this Guaranty shall, as to each
such Guarantor or Guarantors, terminate, and have no further force or effect (it
being understood and agreed that the sale of one or more Persons that own,
directly or indirectly, all of the capital stock or other equity interests of
any Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 20).
21. At any time a payment in respect of the Guaranteed Obligations
is made under this Guaranty, the right of contribution of each Guarantor against
each other Guarantor shall be determined as provided in the immediately
following sentence, with the right of contribution of each Guarantor to be
revised and restated as of each date on which a payment (a "Relevant Payment")
is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments
made by such Guarantor in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment exceeding such Guarantor's Contribution
Percentage (as defined below) of the aggregate payments made by all Guarantors
in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in
Page 12
respect of the Guaranteed Obligations (the aggregate amount of such deficit, the
"Aggregate Deficit Amount") in an amount equal to (x) a fraction the numerator
of which is the Aggregate Excess Amount of such Guarantor and the denominator of
which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the
Aggregate Deficit Amount of such other Guarantor. A Guarantor's right of
contribution pursuant to the preceding sentences shall arise at the time of each
computation, subject to adjustment to the time of each computation; PROVIDED
that no Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been paid in full in cash, it being expressly recognized and
agreed by all parties hereto that any Guarantor's right of contribution arising
pursuant to this Section 21 against any other Guarantor shall be expressly
junior and subordinate to such other Guarantor's obligations and liabilities in
respect of the Guaranteed Obligations and any other obligations owing under this
Guaranty. As used in this Section 21: (i) each Guarantor's "Contribution
Percentage" shall mean the percentage obtained by dividing (x) the Adjusted Net
Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net
Worth of all Guarantors; (ii) the "Adjusted Net Worth" of each Guarantor shall
mean the greater of (x) the Net Worth (as defined below) of such Guarantor and
(y) zero; and (iii) the "Net Worth" of each Guarantor shall mean the amount by
which the fair saleable value of such Guarantor's assets on the date of any
Relevant Payment exceeds its existing debts and other liabilities (including
contingent liabilities, but without giving effect to any Guaranteed Obligations
arising under this Guaranty or any guaranteed obligations arising under any
guaranty of the Senior Subordinated Notes) on such date. All parties hereto
recognize and agree that, except for any right of contribution arising pursuant
to this Section 21, each Guarantor who makes any payment in respect of the
Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment until all of the
Guaranteed Obligations have been irrevocably paid in full in cash. Each of the
Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to waive its
contribution right against any Guarantor to the extent that after giving effect
to such waiver such Guarantor would remain solvent, in the determination of the
Required Lenders.
22. Each Guarantor and each Secured Creditor (by its acceptance of
the benefits of this Guaranty) hereby confirms that it is its intention that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar Federal or state law. To effectuate the
foregoing intention, each Guarantor and each Secured Creditor (by its acceptance
of the benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed
Obligations guaranteed by such Guarantor shall be limited to such amount as
will, after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws and
after giving effect to any rights to contribution pursuant to any agreement
providing for an equitable contribution among such Guarantor and the other
Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of
such maximum amount not constituting a fraudulent transfer or conveyance.
Page 13
23. This Guaranty may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original (including if delivered by facsimile
transmission), but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Guarantors and the Administrative Agent.
24. (a) All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense, will be made in the currency or
currencies in which the respective Guaranteed Obligations are then due and
payable and will be made on the same basis as payments are made by the Borrower
under Sections 4.03 and 4.04 of the Credit Agreement.
(b) The Guarantors' obligations hereunder to make payments in the
respective currency or currencies in which the respective Guaranteed Obligations
are required to be paid (such currency being herein called the "Obligation
Currency") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other than
the Obligation Currency, except to the extent that such tender or recovery
results in the effective receipt by the Administrative Agent, the Collateral
Agent or the respective other Secured Creditor of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent, the
Collateral Agent or such other Secured Creditor under this Guaranty or the other
Credit Documents or any Interest Rate Protection Agreement or Other Hedging
Agreement, as applicable. If for the purpose of obtaining or enforcing judgment
against any Guarantor in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "Judgment Currency") an
amount due in the Obligation Currency, the conversion shall be made, at the rate
of exchange (quoted by the Administrative Agent, determined, in each case, as of
the date immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency Conversion
Date").
(c) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Guarantors jointly and severally covenant and agree to pay, or
cause to be paid, such additional amounts, if any (but in any event not a lesser
amount), as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date.
(d) For purposes of determining the Relevant Currency Equivalent or
any other rate of exchange for this Section 24, such amounts shall include any
premium and costs payable in connection with the purchase of the Obligation
Currency.
25. It is understood and agreed that any Subsidiary of the Borrower
that is required to execute a counterpart of this Guaranty after the date hereof
pursuant to the Credit Agreement shall automatically become a Guarantor
hereunder by executing a counterpart hereof
Page 14
and/or a Subsidiary assumption agreement, in each case in form and substance
satisfactory to the Administrative Agent, and delivering the same to the
Administrative Agent.
* * *
Page 15
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
GENMAR CORPORATION
GENMAR SPIRIT LTD.
GENMAR STAR LTD.
GENMAR TRUST LTD.,
as Guarantors
By /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Title: President
GENMAR ENDURANCE LTD.
GENMAR LEONIDAS LTD.,
as Guarantors
By /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Title: Secretary & Treasurer
GENMAR CHALLENGER LTD.
GENMAR TRADER LTD.
GENMAR XXXXXX LTD.,
as Guarantors
By /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
GENMAR CHAMPION LTD.,
as a Guarantor
By /s/ Xxxxx X. Xxxxxxxxxxxxx
-------------------------------
Title: Vice President
Page 16
Accepted and Agreed to:
CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH,
as Administrative Agent
By: /s/ Hans Chr. Kjelsrud
----------------------------
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxxx
----------------------------
Title: Senior Vice President
